ARUNA PRADEEP RATHIversusTHE STATE OF MAHARASHTRA

                                                              5-apl-991-2023.doc


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPLICATION NO. 991 OF 2023

Aruna Pradeep Rathi                              …Applicant

        V/s.

The State of Maharashtra and Ors.                ...Respondents

Mr. Rahul Moghe i/b Ms. Kalyani Rathod, Advocate for the
Applicant.
Mr. P. H. Gaikwad, APP for the Respondent/State.
Adv. Karim Pathan a/w Adv. Shane Illahi Turky /w Adv. Fardeen
Shaikh, Mr. Fazal Shaikh, Advocate for Respondent Nos. 2 to 5.
Adv. Aditya Mithe a/w Adv. Yashratan S., Adv. Esha Joshi, Advocate
for Respondent Nos. 6 to 10.



                                CORAM        :   N.R. BORKAR, J.
                                DATE         :   02.02.2026.

P.C. :

1.                This application under Section 482 of the Criminal

Procedure Code takes exception to the order dated 14.06.2023

passed by the Metropolitan Magistrate, 64th Court, at Esplanade,

Mumbai, in C.C.No. 646/Misc/2022.



2.                By the order impugned, the learned Magistrate has

returned the complaint filed by the applicant for want of

jurisdiction.
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3.                I have heard the learned counsel for the applicant, the

learned counsel for the contesting respondents and learned APP

for the Respondent-State.



4.                The learned counsel for the applicant submits that the

applicant has filed the complaint against respondent Nos.2 to 10

for the offence punishable under Sections 465, 467, 468, 474, 409

read with 120B of the Indian Penal Code. It is submitted that the

learned Magistrate after recording the verification and hearing the

applicant by order dated 30.09.2022 postponed the issuance of

process and directed the investigation by police under Section 202

of Criminal Procedure Code. It is submitted that pursuant to the

said order, on 30.01.2023 the police submitted the report that the

respondent Nos. 2 to 10 have committed the offences punishable

under Sections 409, 465, 467, 468 & 474 read with 120B of the

Indian Penal Code. It is submitted that the learned Magistrate

thereafter heard the matter on the point of issuance of process. It

is submitted that the learned Magistrate however instead of

passing the order in terms of Section 203 or Section 204 of the

Criminal Procedure Code, by the order impugned, returned the
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complaint for want of jurisdiction. The learned counsel for the

applicant submits that after taking cognizance, the complaint can

not be returned for want of jurisdiction. In support of the said

submission, the learned counsel for the applicant has relied upon

the decision of the Hon’ble Supreme Court in           Devendra

Kishanlal Dagalia vs. Dwarkesh Diamonds Private Limited

and Ors1.



5.                On the other hand, the learned counsel for the

respondents supported the impugned order.



6.                The Hon’ble Supreme Court in Devendra Kishanlal

Dagalia vs. Dwarkesh Diamonds Private Limited and Ors 2

has observed that Section 201 of the Criminal Procedure Code lays

down the procedure to be followed by the Magistrate not

competent to take cognizance of the offence. If the complaint is

made to a Magistrate who is not competent to take cognizance of

the complaint he shall return the complaint for its presentation

before the proper Court and if the complaint is not in writing,

direct the complainant to move before the proper Court.
1    (2014) 2 SCC 246
2    (2014) 2 SCC 246
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7.                The Hon’ble Supreme Court has held that Section 202

of the Criminal Procedure Code contemplates postponement of

issuance of process on receipt of complaint in circumstances

mentioned there. If the Magistrate is of the opinion that there is no

sufficient ground for proceeding, he may dismiss the complaint

under Section 203 of the Criminal Procedure Code by briefly

recording reasons. The Hon’ble Supreme Court has ultimately held

that Section 201 of the Criminal Procedure Code can be applied

immediately on receipt of a complaint if the Magistrate is not

competent to take cognizance of the offence. Once the Magistrate

takes cognizance of the offence and forms his opinion that there is

sufficient ground for proceeding under Section 204 of the Criminal

Procedure Code, it is held that and there is no question of going

back following the procedure under Section 201 of Criminal

Procedure Code.



8.                In the present matter, admittedly, learned Magistrate

after taking cognizance directed the investigation by police under

Section 202 of the Criminal Procedure Code. In such situation
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there       was no question of going back to Section 201 of the

Criminal Procedure Code. In that view of the matter, the order

impugned cannot be allowed to stand. In the result, the following

order is passed :


                                  ORDER


                  a)     The Application is allowed.

                  b)     The order impugned is set aside. The learned

                  Magistrate shall restore the complaint on file and

                  shall proceed to decide it in accordance with the

                  law.

                  c)     However, this will not preclude respondent

                  Nos. 2 to 10 from raising the issue of jurisdiction in

                  appropriate proceedings, in case the process is

                  issued against them.



                                                 [N.R.BORKAR, J.]




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